• Robert Spicer

Negligence at work: liability for injury and disease

CHAPTER 2: NEGLIGENCE

Duty of Care

Manufacturer

Davie v New Merton Board Mills (1958)

A drift (a tapered steel bar) was made by an old-established toolmaking firm. The drift was defective because it had been made from excessively hard steel. If the manufacturers had used reasonable care, they would have discovered the fault.

The tool was sold by its makers to a supplier which sold it on to Mr Davie’s employers. The fault in the tool could not have been discovered by the employers. When Mr Davie used the drift at work, a piece of steel flew off it, causing him injuries. He claimed compensation from his employers, alleging negligence.

The Court of Appeal ruled that there was no liability. The employers had taken all reasonable care to supply a safe tool.

Note:

The Employer’s Liability (Defective Equipment) Act 1969 reversed the effect of this decision. The 1969 Act provided that:

Where an employee is injured in the course of his employment, as a result of a defect in equipment provided by the employer and the defect is due to the fault of a third party, then the injury is deemed, in law, to be the fault of the employer.

Public Disorder: Senior Police Officer

Hughes v National Union of Mineworkers and Others (1991)

H, a policeman, was injured in the execution of his duty while assisting North Yorkshire Police during the 1984-85 miners’ strikes.

He claimed compensation from that police forces’ chief constable, arguing that the chief constable had been negligent in deploying his forces and that H had been injured as a result. The High Court gave judgement as follows:

  1. Senior police officers are not, as a matter of public policy, generally liable to individual officers for injuries suffered in serious public disorders.

  2. If a duty were owed in such circumstances, this would be detrimental to public order control because the fear of possible negligence actions might adversely affect critical decisions.

Diagnosis of Employee’s Mental Illness: Failure to Ensure Treatment

Ali v Furness Withy (Shipping) Ltd (1988)

A, a seaman on board a gas carrier owned by the defendants, exhibited symptoms of serious mental disorder while at sea. He claimed that four people were plotting to kill him. He refused to be lodged in the ship’s hospital. He was then physically restrained and locked in his cabin.

A, believing that he was suffering from delusions, jumped out of the porthole of his cabin and drowned. His widow claimed damages from the defendants on the basis that the master of the ship had been negligent, and in particular:

  • Should have diagnosed earlier that A was mentally ill;

  • Should have taken steps to land A for hospital treatment on shore.

The High Court reached the following conclusions:

  1. The master had not been negligent in failing to make an earlier diagnosis.

  2. When he reached his conclusion, he should have taken immediate steps to take A off the ship.

  3. A had not been properly restrained and observed.

  4. The widow was entitled to damages.

Mental Health of Employee: Rescuer Witnessing Harrowing Scenes

McFarlane v E.E. Caledonia Ltd (1993)

Mr McFarlane worked on rescue operations during the fire and explosion on the oil rig Piper Alpha. As a result of the harrowing scenes which he witnessed, he became mentally ill. He claimed damages from the owners of the rig.

The High Court held that he was owed a duty of care. The owners appealed.

The Court of Appeal made the following points:

  1. The test was whether a reasonable owner would have, or should have, foreseen that a person of normal fortitude in the position of the plaintiff would have reasonably been in fear of his life and safety.

  2. On the evidence, this was not the case.

  3. The duty of employers in such cases did not extend to mere witnesses of horrific events.

  4. There had not been sufficient proximity between the plaintiff and the victims of the event.

Mental Health: Work-Related Stress

Petch v Commissioners of Customs and Excise (1993)

Mr Petch was employed as a senior civil servant. He suffered a mental breakdown and claimed damages from his employers. His argument was that his conditions of work had caused the breakdown, and in particular that he had suffered stress because of overwork. At first instance the employers were found not liable. Mr Petch appealed to the Court of Appeal.

In dismissing the appeal, the Court held:

  1. Mr Petch’s breakdown had been caused by his working conditions.

  2. However, his employers had tried to persuade him to take sick leave and had transferred him to less stressful work.

  3. In these circumstances, the employers could not be said to have been negligent.

  4. The duty of care of an employer clearly extended to the mental as well as physical health of its employers.

  5. On the facts of the present case there had been no breach of the duty of care.

Overwork; Excessive Overtime; Threat to Health; Hospital Doctor

Johnstone v Bloomsbury Health Authority (1990)

Dr Johnstone worked as a senior house officer at University College Hospital. He was required, under the terms of his employment, to work a basic 40-hour week. He was also required to be available to work overtime for up to 48 hours on average. The practical effect of this was that in some weeks Dr Johnstone might have to work more than a total of 88 hours.

Dr Johnstone argued that he could not be lawfully required to work for so many hours as might foreseeably injure his health.

The Court of Appeal ruled in Dr Johnstone’s favour.

In any sphere of employment other than that of junior hospital doctors, a requirement that 88 hours could be worked in a week would be treated as intolerable and oppressive. There was no reason why the health authority should not comply with its general duty to take reasonable care not to injure the health of employees.

Safe System of Work; Overwhelming Pressure of Work; Nervous Breakdown

Walter v Northumberland County Council (1994)

Mr Walker was an area social services officer employed by the defendants. He had been responsible for the management of four teams of social service field workers, whose responsibilities included child care.

His workload became overwhelming, and he requested extra staff and assistance. Neither was supplied. In 1986 Mr Walker suffered a nervous breakdown as the result of pressure of work. He returned to work in 1987 and again requested assistance. The employers failed to provide proper assistance and Mr Walker suffered a second breakdown. In 1988 he was dismissed from his job on the grounds of ill-health. He claimed damages in common law negligence.

In the High Court, Mr Justice Colman ruled that:

  1. The case law on providing safe systems of work referred almost exclusively to physical injury, but there was no reason why psychiatric harm should be excluded for the scope of employers’ duty to take care.

  2. The question in the present case was whether the employer ought to have foreseen that Mr Walker had been exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy workload.

  3. Mr Walker had a normal personality, but he had been driven to despair by the employers’ failure to provide him with sufficient resources.

  4. In respect of the first breakdown, it had not been foreseeable that Mr Walker was exposed to a material risk of mental illness.

  5. With regard to the second breakdown, however, the employers should have foreseen that if Mr Walker were exposed to the same pressures, then there was a risk that he would become so ill that his career would terminate.

  6. The employers had been in breach of their common law duty of care and were liable to compensate Mr Walker.

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